[205] a conveyance, they must consequently be an equitable revocation A man made a will, and appointed one (who was no relation) to be his executor. He afterwards went abroad, where he became a governor of one of the plantations, and sent over for an English woman of his acquaintance, whom he married, and had children by; and died, without an actual revocation of his will. Yet it was determined, that this total alteration of his circumstances was an implied revocation. 1 P. Will. 304. Eyre and Eyre. So in the case of Lugg and Lugg, M. 8 W. before the delegates. One being single made his will, and devised all his personal estate. Afterwards he married, and had several children, and died without other will or disposition. It was ruled, that there being such an alteration in his estate and circumstances so different at the time of his death from what they were when he made the will, here was room and presumptive evidence to believe a revocation, and that the testator continued not of the same mind. 2 Salk. 592. L. Raym. 441. And in the case of Brown and Thompson, T. 1702. The lord keeper was of opinion, that alteration of circumstances may be a revocation of a will of lands, as well as of a personal estate; notwithstanding the statute, which doth not extend to an implied revocation. 1 Abr. Cas. Eq. 413. (2) (1) Charman v. Charman, 14 Ves. 580. (2) And accordingly, marriage and the birth of a child has been adjudged a revocation of a will of lands, in Christopher v. Christopher, [Dougl. 35.] 4 Bur. 2171. 2182. and Sprange [or Spragg] v. Stone, Amb. 721. [2 Eden. Rep. 263, and note.] though the child were born after the father's death. Doe v. Lancashire, 5 T. Rep. 49. But it seems that marriage or the subsequent birth of a child alone, are not of themselves sufficient to support the presumption of a revocation. See Dr. Hay's Judgment, Hil. 1770, in Shepherd v. Shepherd, 5 T. Rep. 49. 51. n. (which doctrine however Mr. Fonblanque has combated in his note to Treat. on Eq. ii. 355.) [J. B. married and afterwards made his will, and devised to his niece, and died, leaving his wife enceinte with a daughter, which was unknown to him. This birth was held not a revocation of the will. Doe d. White v. Barford 4 M. & S. 10.] And as marriage and the birth of a child, when taken together, only furnish ground on which to presume an alteration of the testator's mind, such implied revocation may be rebutted by evidence, either written or parol, which proves a republication. Brady v. Cubitt, 1 Doug. Rep. 31. [Quære, whether such implied revocations may be rebutted by evidence of parol declarations of the testator made after the events, that he meant his will to stand. Kembel v. Scrafton, 2 East, Rep. 530.] Wills of Seamen and Marines. By 55 G. 3. c. 60. Intituled, "An act to repeal several acts [Repeal of "relating to the execution of letters of attorney, and wills of petty several acts.] “officers, seamen, and marines, in his majesty's navy; and to make "new provisions respecting the same." 9 & 10 W. 3. c. 41. § 3. 6. 20 G. 2. c. 24. § 6. 31 G. 2. c. 10. § 21. 24. 9 G. 3. c. 30. § 5. 6. 26 G. 3. c. 63. 32 G. 3. c. 34. and c. 67. § 14. 16. 49 G. 3. c. 108. § 1. 6. 10. 17. 54 Geo. 3. c. 93. § 7. are repealed. § 1. wills. By § 2. No will made by any petty officer or seaman, non- Mode of commissioned officer of marines, or marine, before his entry into executing his majesty's service, shall be rated to pass or bequeath any wages, pay, prize or bounty money, or other allowances of money to accrue due for or in respect of the service of any such petty officer or seaman, non-commissioned officer of marines, or marine, in his majesty's navy. Nor shall any will made or to be made by any such petty officer, &c. in the king's service, be valid to bequeath any such wages, &c. due, or to grow due, to him, unless it shall contain the name of the ship to which the person executing the same belonged at the time, or to which he last belonged, Ex parte the Earl of Ilchester. A second marriage, and the birth of children, the wife and children being provided for by settlement, and there being children by the former marriage; held to be a case of exception from the rule, that marriage and the birth of a child revoke a will. 7 Ves. 348. But where there was no settlement on the second wife and her issue, a second marriage and the birth of a child were held presumptive revocation of a will, made by a widower, and in favour of children of a former marriage. Hollway v. Clarke, 1 Phill. Rep. 339. Emerson v. Boville, id. 342.; nor does the death of the child of the second marriage after the presumption. Id. The whole law of presumed revocation of former will by marriage and birth of children, is stated by sir John Nichol, in Johnston v. Johnston, 1 Phill. Rep. 447. in which case the first will of a married man with children, was set aside on shewing the birth of more children, and his intention to make another will.] Hinckley v. Simmons. Two unmarried sisters made similar wills, [Mutual in favour of each other, bearing the same date, and appointing the or similar same executors. The marriage of one of them was held not to revoke wills.] the will of the other. 4 Ves. 160. [And see Lowfield v. Stoneham, 2 Stra. 1261. Mutual or conjoint wills irrevocable by either of the supposed testators are unknown to the testamentary law of this country; and a separate will of the same deceased of a later date, was in effect pronounced for in Hobson v. Blackburn and another, 1 Add. Rep. 274. but the devisees of such a will may be trustees for performing the deceased's part of the compact. Dufour v. Perraro, per lord Camden, 18 July, 1769, 2 Hargr. Jurid. Exer. 101. Walpole v. Cholmondeley, 7 T. Rep. 138. observed on 3 Ves. 403.] and also in every case a full description of the relationship or residence of the person or persons to whom, or in whose favour as executor or executors, the same shall be granted or made; and also the day of the month, and year, and the name of the place when and where the same shall have been executed. Nor shall any such will be good for the purposes aforesaid unless executed and attested as follows:In case any such will is made by any such petty officer or seaman, non-commissioned officer of marines, or marine, at any time while they respectively belong to and are on board any of his majesty's ships, as part of the complement thereof, or be borne on the books as a supernumerary, or as an invalid, or for victuals only, unless such will is executed in the presence of and attested by the captain or other commanding officer of the ship, or during his absence on leave on separate service, by the commanding officer for the time being, who in that case shall state at the foot of such attestation the absence of such captain, &c. at the time of the execution of such will, and the occasion thereof; or in case of the inability of such captain or commanding officer by reason of wounds or sickness to attest any such will, then unless such will is executed in the presence of and attested by the first lieutenant or other officer next in command of such ship, who shall state at the foot of such attestation the inability of such captain, &c. to attest the same: In case any such will shall be made by any such petty officer, &c. in any of his majesty's hospitals, or on board any of his majesty's hospital ships, or in any military or merchant hospital, or at any sick quarters either at home or abroad, unless such will shall be executed in the presence of and attested by the governor, physician, surgeon, assistant surgeon, agent, or chaplain of any such hospital or sick quarters of his majesty; or by the commanding officer, agent, physician, surgeon, assistant surgeon, or chaplain for the time being, of any such hospital ship; or by the physician, surgeon, assistant surgeon, agent, chaplain, or chief officer of such military or merchant hospital, or other sick quarters, or one of them: In case any such will shall be made by any such petty officer, &c. on board of any ship in the transport service or in any merchant ship, unless the same is executed in the presence of and attested by some commission or warrant-officer, or chaplain in his majesty's navy; or some commission officer, or chaplain belonging to his majesty's land forces, or royal marines; or the governor, physician, surgeon, assistant surgeon, or agent of any hospital in his majesty's naval or military service who may happen to be then on board of such transport or merchant vessel, or by the master or first mate thereof, or one of them: In case any such will shall be made by any such petty officer, &c. after his discharge from his majesty's service, unless the same (if the party making such will resides in London or Westminster, or within -- the bills), shall be executed in the presence of and attested by the inspector (for the time being) of seamen's wills, or his assistant, or clerk; or unless the same (if the party resides at or within seven miles from any port or place where the wages of seamen in his majesty's service are paid), shall be executed in the presence of and attested by one of the clerks in the office of the treasurer of the navy, resident at such port or place; or unless the same (if the party resides at any other place in Great Britain, Ireland, or in Guernsey, Jersey, Alderney, Sark, or Man), shall be executed in the presence of and attested by a justice of peace, or by the minister, or officiating minister or curate of the parish or place in which such letter of attorney or will shall be executed; or unless the same (if the party reside in any other part of his majesty's dominions, or any colonies, &c. or foreign possession or dependency of his majesty, his heirs or successors, or any settlement within the charter of the East India Company), shall be executed in the presence of and attested by some commission, or warrant-officer, or chaplain of his majesty's navy, or commission officer of royal marines, or the commissioner of the navy, or naval storekeeper at one of his majesty's naval yards, or a minister of the church of England or Scotland, or a magistrate or principal officer residing in any such island, colony, &c. or if the party resides at any place not within his majesty's dominions, or within any place last above enumerated, unless the same shall be executed in the presence of and attested by the British consul, or vice-consul, or some officer having a public appointment, or commission, civil, naval, or military, under his majesty's government, or by a magistrate or notary public of or near the place where such letter of attorney or will shall be executed. Ib. prisons 55 G. 3. c. 60. § 3. Enacts that every will already or hereafter [Wills exemade by any petty officer or seaman, non-commissioned officer of cuted in marines or marine, at any time while they were or shall be prisoners foreign of war in parts beyond the seas, shall be as valid as if the same had when been respectively executed and attested in the manner required valid.] by the acts recited in § 1. or any of them. Provided every such will shall have been executed in the presence of and attested by some commission or warrant-officer of his majesty's navy, commission officer of royal marines, physician, surgeon, assistant surgeon, agent, or chaplain, to some naval hospital; or some commission officer, physician, surgeon, assistant surgeon, or chaplain of the army, or any notary public, any thing in any of the said acts to the contrary notwithstanding: but so as not to invalidate or disturb any payment already made under any letter of administration, certificates or otherwise, pursuant to the said printed acts, or any of them, in consequence of the rejection of any such [Wills not in same instrument with power of attor ney.] wills by the inspector of seamen's wills, for want of due attestation according to the directions of the said acts, or any of them. By § 4. No will of any seaman contained in the same instrument, paper, or parchment, with a letter of attorney, shall be available in law for any purpose whatever. By § 5. All commanders of ships shall, on their monthly muster-books or returns, specify which of the persons mentioned [Entering therein have made any will during that month, or other space of time from the preceding return, by inserting the date thereof opposite the party's name under the head of " WILL.” wills on muster books.] spector.] 6. Enacts, That before any such will as in this act menwills by in- tioned, shall be attempted to be acted on or put in force, the same shall be sent to the treasurer of the navy, at the Navy Pay-office, London, in order that the same may be examined by the inspector of seamens' wills; who, or his assistants, shall immediately on receipt of every such will, duly register the same in a numerical and alphabetical manner, in separate books, to be kept for that purpose, specifying the date of such will, the place where executed, and the name and addition of the executor or executors; and also the names and additions of the attesting witnesses and shall mark the said wills with numbers corresponding with those made on the entries thereof in the said books: and shall take all proper means to ascertain the authenticity of every such will, and in case it appears to him, or he has reason to suspect that any such will is not authentic, he shall forthwith give notice in writing to the executor or executors that the same is stopped, and the reason thereof, and shall also report the same to the treasurer or pay-master of the navy, and shall enter his caveat against such will, which shall prevent any money from being received thereon, till the same shall be authenticated, to the satisfaction of the said treasurer or pay-master; but if, on such examination, it appears to the said treasurer, pay-master, or inspector that such will is authentic, the said inspector or his assistant shall sign his name to it, and also put a stamp thereon, in token of his approbation thereof. [Probate of wills by executors.] By § 8. Where any petty officer or seaman, non-commissioned officer of marines or marine, who shall have belonged to any ship of H. M., his heirs or successors has died or shall hereafter die, having left a will appointing any executor or executors therein, no pay, wages, prize, bounty, or other allowance of money which may have been due to such testator at the time of his death, shall be paid over to, or recovered by such executor, except on the probate of such will, to be obtained as follows, viz: After such will has been so transmitted, registered, inspected, and approved as herein before directed, the inspector of seamen's wills shall issue to the person named and described as executor or executrix of such will, a check in lieu thereof, containing directions to return |